[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS

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ELEVENTH CIRCUIT
FEB 18, 2010
JOHN LEY
CLERK

No. 09-14059
Non-Argument Calendar
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D. C. Docket No. 09-60059-CR-JIC
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus
MICHAEL HARLEY,
Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Florida
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(February 18, 2010)
Before DUBINA, Chief Judge, TJOFLAT and WILSON, Circuit Judges.
PER CURIAM:
Appellant Michael Harley appeals his sentences after his convictions for

selling and conspiring to sell United States Treasury checks, in violation of 18

U.S.C. 371 and 510(b). Harley contends that, at his sentencing hearing, the
district court improperly permitted Michael Gabriel, his co-defendant who had
already pleaded guilty, to exercise his Fifth Amendment privilege. Harley asserts
that Gabriels testimony would have exonerated him.
We review a district courts evidentiary rulings for an abuse of discretion.
United States v. Khanani, 502 F.3d 1281, 1292 (11th Cir. 2007). Even if an
evidentiary ruling is erroneous, it will warrant reversal only if the error was not
harmless. Id. (internal quotation marks omitted). An error is harmless unless
there is a reasonable likelihood that it affected the defendants substantial rights.
Id. (internal quotation marks omitted).
The Fifth Amendment provides, in relevant part: No person shall be . . .
compelled in any criminal case to be a witness against himself. U.S. Const.
Amend. V, cl. 2. [A] witnesss answers are not compelled within the meaning of
the Fifth Amendment unless the witness is required to answer over his valid claim
of privilege. United States v. Vangates, 287 F.3d 1315, 1320 (11th Cir. 2002)
(internal quotation marks omitted). [T]he Fifth Amendment permits a witness to
refuse to answer any question put to him unless and until he is protected at least
against the use of his compelled answers and evidence derived therefrom in any

subsequent criminal case in which he is a defendant. Id. (internal quotation marks

omitted). That protection extends to any proceeding, civil or criminal, formal or
informal, where the answers might incriminate him in future criminal
proceedings. Minnesota v. Murphy, 465 U.S. 420, 426 104 S. Ct. 1136, 1141
(1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77 94 S. Ct. 316, 322 (1973)).
To assert the privilege against self-incrimination, the threat of a future
prosecution and possible conviction must be reasonable, real, and appreciable.
United States v. Gecas, 120 F.3d 1419, 1424 (11th Cir. 1997) (en banc). As a
general rule, where there can be no further incrimination, there is no basis for
asserting the privilege. Mitchell v. United States, 526 U.S. 314, 326, 119 S. Ct.
1307, 1314, (1999). A witness may not invoke the Fifth Amendment concerning a
charge to which he has already pleaded guilty and in which the sentence has been
fixed and the judgment has become final . . . . If no adverse consequences can be
visited upon the convicted person by reason of further testimony, then there is no
further incrimination to be feared. Id.
We conclude from the record that the district court did not abuse its
discretion by declining to compel Gabriels testimony over his invocation of his
Fifth Amendment privilege. It was not unreasonable to conclude that, by testifying
in Harleys favor, Gabriel possibly would be contradicting his earlier statements

made as part of a guilty plea, exposing himself to a potential charge of perjury.

Moreover, we conclude that Harley has failed to demonstrate that any
alleged error caused him prejudice. Harley has offered no reason for the
introduction of Gabriels testimony, other than a blanket assertion that Gabriels
testimony would have exonerated him. This is inappropriate at a sentencing
hearing, as Harleys guilt had already been determined by a jury beyond a
reasonable doubt. Additionally, as Gabriels counsel made clear in his response to
Harleys request that Gabriel testify, Gabriel would not provide any testimony that
was favorable to Harley, even if compelled. In sum, Harley has not identified how
his substantial rights were affected by the district courts decision to permit Gabriel
to invoke the Fifth Amendment.
Accordingly, the district courts ruling was not an abuse of its discretion,
and we affirm Harleys sentences.
AFFIRMED.